Citation Nr: 0915346
Decision Date: 04/23/09 Archive Date: 04/29/09
DOCKET NO. 06-21 737 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St. Louis,
Missouri
THE ISSUE
Entitlement to service connection for tinnitus.
REPRESENTATION
Appellant represented by: Missouri Veterans Commission
ATTORNEY FOR THE BOARD
J. Slomich, Associate Counsel
INTRODUCTION
The Veteran served on active duty from January 1962 to
January 1988.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a November 2004 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
St. Louis, Missouri, which denied the benefit sought on
appeal. In July 2008, the Board remanded the claim for a
clarifying medical opinion.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the Veteran's appeal has been obtained.
2. Resolving all doubt in favor of the Veteran, tinnitus is
etiologically related to active service.
CONCLUSION OF LAW
Tinnitus has been shown to be etiologically related to active
service. 38 U.S.C.A. §§ 1110, 1131, 5107(b) (West 2002); 38
C.F.R. §§ 3.102, 3.159, 3.303 (2008).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The Veteran and his representative contend that the Veteran's
tinnitus was caused by noise exposure during military
service. Because the claim of service connection for
tinnitus is being granted, there is no need to review whether
VA's statutory duties to notify and assist are fully
satisfied, as any error would be non-prejudicial. See 38
U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West
2002); see also 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2008).
Law and Analysis
Service connection may be established for disability
resulting from personal injury suffered or disease contracted
in line of duty in the active military, naval, or air
service. 38 U.S.C.A. §§ 1110, 1131. That an injury or
disease occurred in service is not enough; there must be
chronic disability resulting from that injury or disease. If
there is no showing of a resulting chronic condition during
service, then a showing of continuity of symptomatology after
service is required to support a finding of chronicity. 38
C.F.R. § 3.303(b). Service connection may also be granted
for any injury or disease diagnosed after discharge, when all
the evidence, including that pertinent to service,
establishes that the disease or injury was incurred in
service. 38 C.F.R. § 3.303(d).
Service connection is also warranted where the evidence of
record shows that a chronic disability has been caused or
aggravated by an already service-connected disability. 38
C.F.R. § 3.310 (2008); see also Allen v. Brown, 7 Vet. App.
439 (1995).
When there is an approximate balance of positive and negative
evidence regarding any issue material to the determination of
a matter, the benefit of the doubt shall be given to the
claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt
arises regarding service origin, such doubt will be resolved
in the favor of the claimant. Reasonable doubt is doubt
which exists because of an approximate balance of positive
and negative evidence which does not satisfactorily prove or
disprove the claim. 38 C.F.R. § 3.102. The question is
whether the evidence supports the claim or is in relative
equipoise, with the claimant prevailing in either event, or
whether a fair preponderance of the evidence is against the
claim, in which event the claim must be denied. See Gilbert
v. Derwinski, 1 Vet. App. 49, 53-54 (1990).
The Veteran seeks service connection for tinnitus, which he
argues is a result of noise exposure during his period of
active service. As an initial matter, the Board finds that
there is evidence of record which supports the Veteran's
contentions of in-service noise exposure. Specifically, the
Veteran argues that as a gunners' mate for over twenty years
in the Navy he was exposed to naval gunfire on a regular
basis. Likewise, in his July 2008 VA Form 9, the Veteran
reported that he was exposed to acoustic trauma when a naval
5 inch gun was fired near his ear during a gunners exercise
when he was stationed on the U.S.S. Anchorage. In addition,
the Board notes that the service treatment records (STR) not
only identify him as a "gunners' mate", but also show that
the Veteran received treatment for an ear ache diagnosed as
otitis media in August 1964. The STR also show that he was
hit by a gun carriage in November 1963. Further, the
Veteran's written statements regarding his in-service noise
exposure are credible and consistent with the circumstances
of such service. See Buchanan v. Nicholson, 451 F.3d 1331
(Fed. Cir. 2006); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.
Cir. 2007). In view of the foregoing, the Board concludes
that there is ample evidence in the record on appeal to show
that the Veteran sustained acoustic trauma during active
service.
As noted, however, an injury or disease occurring in service
is not enough; there must be chronic disability resulting
from that injury or disease. In this regard, a review of the
record on appeal shows that the September 2004 VA examiner
opined, in part, that "[i]t is possible that the [V]eteran's
tinnitus may be related to a combination of inner ear
pathologies and middle ear disorders that caused the
Veteran's service-connected hearing loss." While the Board
in July 2008 remanded the appeal to obtain a clarifying
opinion as to, among other things, whether his tinnitus was
caused or aggravated by his hearing loss and/or was otherwise
related to his military service, no reply was forthcoming as
to these questions at either of the post-remand VA
examinations. See post-remand VA examinations dated in
August 2008 and October 2008.
Nonetheless, the Board notes that in a November 2002 rating
decision the RO granted the Veteran service connection for
bilateral hearing loss based on the same claims of noise
exposure as a gunners' mate in the Navy for over twenty years
that have been outlined by the claimant above. Moreover, the
fact that the Veteran has been granted compensation for a
service-related hearing loss adds to the credibility of his
contention that his tinnitus is related to service because
"an associated hearing loss is usually present" with
tinnitus. The Merck Manual, Sec. 7, Ch. 82, Approach to the
Patient with Ear Problems. Additionally, tinnitus may occur
as a symptom of nearly all ear disorders including
sensorineural or noise-induced hearing loss. Id. With
regard to the latter, the Board notes the RO granted service
connection for hearing loss because the record showed that it
was noise-induced, i.e., a result of his exposure to acoustic
trauma during service. In this regard, the Board notes that
"high frequency tinnitus usually accompanies [noise-induced]
hearing loss." The Merck Manual, Section 7, Cha. 85, Inner
Ear.
In summary, for the reasons and bases discussed above, the
Board finds that the evidence for and against the claims of
service connection for tinnitus are at least in approximate
balance. In other words, the Board finds that based on this
record that the Veteran currently has tinnitus which is
likely the result of his noise exposure in service as it is
the result of some other factor or factors.
Accordingly, the Board will resolve the benefit of the doubt
in favor of the Veteran in this case as the law requires and
grant service connection for tinnitus. 38 U.S.C.A. § 1110,
1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2008).
ORDER
Entitlement to service connection for tinnitus is granted.
____________________________________________
KATHLEEN K. GALLAGHER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs